Federal Judge Warns Government Lawyers in Clinton Email Case: ‘No FOIA Exemption for Political Expedience’

The Honorable Royce C. Lamberth(C), acting Chief Judge of the United States District Court for the District of Columbia, makes remarks after giving the Oath of Allegiance to new U.S. citizens from 28 countries during a Naturalization Ceremony in the Rotunda of the U.S. Constitution at the National Archives in Washington Dec. 15, 2005. Thirty five new Americans from 28 countries took the oath of citizenship. (Tim Sloan/AFP via Getty Images)

WASHINGTON—U.S. District Court Judge Royce Lamberth upbraided government attorneys in the Hillary Clinton email case, warning them that “there is no FOIA exemption for political expedience, nor is there one for bureaucratic incompetence.”

Lamberth’s comment came in his Aug. 22 decision approving Judicial Watch’s request for expanded discovery in the nonprofit’s lawsuit related to former Secretary of State Hillary Clinton’s use of a private email system to conduct official business, and efforts by her, senior aides on her staff, and other federal officials to conceal the system.

Judicial Watch released the transcript of Lamberth’s decision on Sept. 6. Lamberth, who was appointed by President Ronald Reagan in 1987, has presided over numerous important cases involving the Freedom of Information Act (FOIA).

The existence of the non-secured private Clinton email system became known due to Judicial Watch’s Sept. 10, 2014, FOIA lawsuit seeking emails to and from her and her key aides.

When details of the private Clinton email system became known, it turned out that there were more than 55,000 messages to and from her and her aides, and that her attorneys had deleted more than 30,000 they deemed to be about personal matters, not official duties.

Dozens of classified documents were transmitted over the system, which FBI investigators said could have been compromised by foreign interests.

Then-FBI Director James Comey criticized Clinton in an unprecedented July 2016 national statement, but said he wouldn’t recommend prosecuting her because she didn’t “intend” to break the law.

In his latest decision, Lamberth criticized government lawyers for claiming there was no justification for “re-opening” the discovery he approved in December 2018, including Judicial Watch depositions of Clinton, her former chief of staff Cheryl Mills, and a host of other aides and present and former federal officials.

Most of those depositions have since been completed, but Clinton and Mills have opposed the process. Lamberth gave them 30 days to explain why they think they shouldn’t be deposed.

“First, let me clarify the government’s misunderstanding,” Lamberth told the court. “We’re not reopening discovery here. Discovery never closed. Back in January, I said, ‘The government will—the court will hold a post-discovery hearing to ascertain the adequacy of State’s searches; to determine if Judicial Watch needs to depose additional witnesses, including Hillary Clinton or her former Chief of Staff Cheryl Mills; and to schedule dispositive motions.’ So June 19th was a checkpoint, not a finish line.

“Now, we know more, but we have even more questions than answers. So I won’t hold it against Judicial Watch for expanding their initial discovery request now.”

Lamberth reminded those present that government lawyers tried “in late 2014 and early 2015” to settle the Judicial Watch litigation without telling the court or the nonprofit critically important and relevant information about the Clinton emails.

The judge then pointed to numerous grounds for continuing and expanding Judicial Watch’s discovery and depositions:

• In “the middle of 2013,” the State Department’s Office of Information and Program Services (OIPS) launched an inquiry into Clinton’s email practices.
• In August 2013, the OIPS directed department officials to stop telling FOIA requestors that no Clinton email records could be located.
• Officials knew “by the summer of 2014 [that] a large volume of Clinton’s emails had never been searched, potentially violating FOIA and record management obligations.”
• After Clinton left the State Department in 2013 to run for president, Lamberth said, “it turns out State had a standing meeting every Wednesday afternoon during the summer of 2014 to discuss Clinton-related FOIA inquiries.”

Those regularly attending the Wednesday meetings included Clinton’s successor, former Sen. John Kerry (D-Mass.), his chief of staff and deputy chief of staff, and other senior department executives, including Patrick Kennedy, who continued in the under secretary for management position he held under Clinton.

• Lamberth said he looks forward to hearing the official responsible for State Department responses to FOIA requests explain “more about what went on in those weekly 2014 meetings.”
• The judge directed “the Justice Department attorney who led the settlement negotiations [between Judicial Watch and the State Department] to divulge when he learned Clinton’s emails were missing. He must answer.”
• He agreed with Judicial Watch “that it’s worth deposing the State Department records officer who personally reviewed archiving procedures with Secretary Clinton and her departing staff to see what they discussed.”
• Lamberth said Judicial Watch is justified in seeking “more information about how Secretary Clinton ultimately determined which emails were public records and which were private.”
• Finally, Lamberth said he agreed with “Judicial Watch that it should talk to three never-before-deposed State officials who raised concerns about Clinton’s private email use all the way back to 2009. There is no FOIA exemption for political expedience, nor is there one for bureaucratic incompetence.”

“It is beyond disturbing that the State and Justice departments would continue to try to protect Hillary Clinton and cover up her email scandal,” Judicial Watch President Tom Fitton said in a statement accompanying the release of the Aug. 22 transcript.

Contact Mark Tapscott at [email protected]